If you are a veterinarian who misdiagnosis an animal or prescribes the wrong course of treatment, then you could be sued for malpractice.[1] In a malpractice lawsuit, the animal’s owner will claim that a competent vet would not have made the same mistake and that this mistake injured the animal. To defend against a malpractice claim, you should reconstruct the treatment you gave the animal. You should also contact your insurance company and a lawyer.

Steps

Part 1

Responding to the Lawsuit

1

Read the complaint. The client who sues you will start the lawsuit by filing a complaint. In the lawsuit, this person will be called the “plaintiff.” In the complaint, the plaintiff will explain to the judge what facts have led to the dispute. The plaintiff will also allege that you committed malpractice and that the plaintiff is entitled to money as compensation.

You will receive a copy of the complaint along with the summons. The summons will tell you how much time you have to formally respond.[2]

Read each document closely and highlight the deadline for responding.

2

Identify the alleged malpractice. To sue you for malpractice, the plaintiff needs to allege specific facts. You should check the complaint to see that the plaintiff alleged the following:[3]

you accepted the responsibility to treat the animal

your actions or inactions fell short of how a reasonably careful veterinarian would act

your failure to act in a reasonably careful manner caused the animal’s injury

the plaintiff suffered harm because of the injury

3

Contact your insurance company. As soon as you receive notice of the complaint, you should contact your malpractice insurer. Take out your policy and find the phone number. You should have the following information available to share with the insurer:

the name of the animal owner

information about the animal (age, size, weight)

a summary of the treatment you gave the animal

4

Hire a lawyer. You should meet with an attorney as soon as possible. If you don’t already have a lawyer, then call other vets in your area and ask them if they would recommend their attorney. You can then call and set up a consultation.

If you have no referrals, then you can get one from your local or state bar association.

5

Reconstruct the treatment you gave. With your lawyer, you should discuss in detail the treatment you gave to the animal. Also discuss what information you knew when you prescribed the treatment. To help reconstruct the treatment, bring the following information to your consultation with the attorney:

All records related to the animal.

Your memories of the day you treated the animal. In particular, write down what the owner said when describing what was wrong with the animal.

A list of medications you prescribed the animal.

6

Come up with defenses. You should discuss possible defenses with your lawyer. The precise defenses you raise will depend on the facts of your lawsuit. Nevertheless, there are some standard defenses:

You were sufficiently careful when treating the animal. The fact that the animal died is not proof that you committed malpractice. You might have prescribed the generally accepted treatment, as any careful veterinarian would. If you acted in a competent manner, then you did not commit malpractice.

Your actions didn’t cause the animal’s injury. The plaintiff must show that your actions also caused the animal’s injuries. For example, an animal may die. However, if the animal was already sick when you treated it, then the illness (and not your treatment) might have been the cause of death.

You acted as a “good Samaritan.” If you gave emergency care to an animal at the scene of an accident, then your state law might not require that you have followed the normal standard of care.[4]

The plaintiff waited too long to sue. Generally, an animal’s owner has only one to three years to file a lawsuit, depending on your state’s statute of limitations.[5] If the plaintiff waited too long, then you can have the case dismissed.

7

Draft an answer. You will respond to the lawsuit by filing an answer in court. In this document, you respond to each allegation made in the complaint. You must agree, disagree, or claim insufficient knowledge to agree or disagree with each allegation.[6]

Have your lawyer draft the answer for you. However, also ask to see a copy before the lawyer files it. If you admit to any allegation in your answer, you cannot take it back at a later date. For this reason, you should always check the answer for accuracy.

8

File the answer. Your lawyer will take the answer to court and file it. A copy must be served on the plaintiff or the plaintiff’s attorney.[7]

9

Sit for a deposition. After you file your answer, you and the plaintiff can request information from each other. This is called “discovery.” In a veterinarian malpractice case, you will have to sit for a “deposition.” In the deposition, the plaintiff’s lawyer will ask you questions about the treatment you gave the animal. Remember the following tips when giving your deposition:[8]

Don’t volunteer information. You should only answer any question asked. Also only bring any documents requested. There is no reason to be extra helpful and bring anything not requested. Make the other side request the information.

Listen closely to each question. If you don’t understand it, then ask the lawyer to phrase it another way.

If you don’t know the answer, say, “I don’t know.” You should never guess or speculate.

Stay polite and don’t make jokes. Depositions can be very tense and you don’t know how the other side will respond.

Consult with your lawyer whenever you want. Say, “I think I need to consult with my attorney right now.”

Part 2

Settling the Dispute outside Court

1

Propose settlement negotiations. The animal owner has an incentive to settle. The cost of the lawsuit will probably exceed the amount of compensation the owner can get.[9] For this reason, the plaintiff might propose settling. If not, then your insurance carrier might propose it.

In settlement negotiations, you and the plaintiff meet with your lawyers. The purpose of settlement is for each side to give up something in order to reach an agreement you both can live with.

For example, you may have to pay the plaintiff some money. In return, you can have the lawsuit dismissed.

2

Prepare for negotiations. If you have an insurer, then the claims adjuster will take the lead on settlement negotiations. Your insurer already knows how much the animal’s injury is worth and the strength of the plaintiff’s case. You should certainly attend negotiations and offer your input.

If you are negotiating without an insurance company, then you and your lawyer should come up with your “walkaway” number (also called a “walkaway point”). This is the maximum amount of money you are willing to pay to settle the lawsuit. If the plaintiff won’t come down to your number, then you can break off settlement negotiations.[10]

To come up with the number, analyze how strong the plaintiff’s case is. Based on your experience, you should know whether or not you made an obvious mistake when treating the animal. If you did, then you might want to try and settle for close to the plaintiff’s asking price.

However, if the plaintiff has a weak case, then you might not want to settle unless the plaintiff agrees to take only 50% of what she is asking.

3

Participate in mediation. Alternately, you might want to participate in mediation, which is a form of “assisted negotiation.”[11] In mediation, you and the plaintiff meet with a neutral third party, the mediator, to discuss the dispute. The mediator is skilled at listening to your complaints and then trying to nudge both of you to a solution you can both live with.

Mediation is entirely voluntary, and the mediator does not act like a judge. You can walk away at any time.

If you are interested in mediation, then contact your local courthouse, which might run a mediation program. You can also call your local bar association, which should have a list of mediators.

4

Draft a settlement agreement. You should write down any agreement that you reach with the plaintiff. The settlement agreement becomes an enforceable contract between you and the plaintiff. Be sure to sign it.

Your lawyer should draft the settlement agreement. If you participated in mediation, then the mediator can help.

Make sure that your attorney puts a “release” in the settlement agreement. The release will prevent the plaintiff from re-filing the lawsuit at a later date based on the same allegations.

The release should say something like the following: “Upon payment of the Settlement Payment in full, the Settling Plaintiff, for itself and its assigns and successors, hereby discharges and releases the Settling Defendant and its officers, directors, partners, employees, shareholders, insurers, heirs, executors, representatives, successors and assigns, from all claims, obligations, damages, demands, actions, and causes of action, whether indirect or direct, belonging to the Settling Plaintiff, which relate to or arise from the allegations included in the complaint.”[12]

5

Submit the settlement agreement to the court. Once you reach an agreement, the plaintiff will need to request that the lawsuit be dismissed. You can then submit the settlement agreement as an attachment.

Make sure to keep a copy of the settlement agreement with you.

Part 3

Going to Trial

1

Hire an expert witness. At a trial for malpractice, most of the evidence will turn on whether you acted in a reasonably careful manner. The only way to prove this is to have another veterinarian testify as an expert.[13] The expert then offers an opinion about whether your treatment was sufficiently careful.

The plaintiff will also need an expert to prove that the treatment caused the animal’s injury.

Experts can be expensive. You will have to pay them hourly for their services, which will include preparation time (to review documents) and time spent giving a deposition and testifying at trial.

2

Pick a jury. The case will begin with jury selection. If you are sued in small claims court, then there might not be a jury. However, you probably will have one in regular civil court. Jury selection begins with the judge calling a panel of prospective jurors up to the jury box where he will ask them questions.

If you think a juror cannot be fair, then you can ask the judge to excuse the prospective juror “for cause.” For example, if the juror knows either you or the plaintiff or admits that she can’t be fair, then you will want to remove the juror.

You also should have a limited number of “peremptory challenges.” You can use a peremptory challenge to excuse a juror without having to give a reason.[14]

For example, you might want to use a peremptory challenge to remove anyone who admits to having pets.

3

Present evidence. At trial, both parties present evidence. The plaintiff will go first, and you will go second. The evidence will consist mostly of witnesses and documents. The animal’s owner will probably testify, as will an expert witness.

Your lawyer can cross-examine all of the plaintiff’s witnesses, including any expert witness.

4

Testify on your behalf. You will probably have to testify, since your actions are the focal point of the trial. Your lawyer should have prepared you for testifying, perhaps by doing a trial run. Remember the following tips for delivering effective testimony:

Speak slowly and make eye contact with the jury when answering. Always look at the lawyer asking you questions.

Be brief and to the point. Don’t waffle or evade the lawyer’s question.

Give your lawyer time to object. Pause briefly after each question. If an attorney does object, then wait for the judge to rule on the objection before answering.

Correct all mistakes immediately. If you misspoke, then say, “I’m sorry, I misspoke. I need to clarify that.”

5

Wait for the jury’s verdict. After each side makes a closing argument, the judge will read the jury its instructions. The jury then retires to the deliberation room to consider the evidence.

The plaintiff will not win unless the jury believes that a “preponderance” of the evidence shows that you committed malpractice. “Preponderance” means “more likely than not.”[15]

In state court, the jury might not have to be unanimous. Instead, you could lose if three-fourths or more of the jurors decide for the plaintiff.[16]

If the judge heard the case without a jury in small claims court, then the judge should deliver the verdict from the bench after closing arguments have been made.

6

File an appeal. You might want to appeal if you lose at trial. To do so, you need to file a Notice of Appeal form, typically within 10-30 days of the entry of final judgment.[17][18]

However, you should discuss the costs and benefits of filing an appeal with your lawyer. They can take a long time (over a year) and are expensive. Your lawyer will have to draft a detailed legal brief, and you will also have to pay for fees and for court transcripts. You might not want to appeal unless your case is very strong.

Talk with your lawyer about whether bringing an appeal would be worthwhile.